Mojo - June 2010

During confirmation hearings for Supreme Court nominee Elena Kagan, it almost seemed as if the late and legendary Justice Thurgood Marshall was the one being vetted—rather than Kagan, who once clerked for him. Republicans on the Senate judiciary committee have tried to turn the civil rights icon into ammo for their assault on Kagan, attacking Marshall as a "judicial activist" and suggesting that the same could be expected of Kagan. This wasn't a surprise. Michael Steele, the chairman of the Republican National Committee, kick-started this bash-Marshall campaign last month by pouncing on Kagan for praising a 1987 Marshall speech in which the ex-justice said the Constitution, "as originally drafted and conceived," was "defective." Marshall had been referring to the Constitution's definition of slaves as three-fifths of "free persons." But Steele's oppo gang at the RNC seized on this and zapped out a memo hammering Kagan: "Does Kagan Still View Constitution 'As Originally Drafted And Conceived' As ‘Defective’?"

Choosing to go after the country's first black Supreme Court justice is an iffy strategy for the GOPers. But it's an especially strange line of attack for Steele—formerly Maryland’s first black lieutenant governor—who used to laud Marshall as a hero.

For instance, in July 2004, Steele honored Marshall as a barrier-shattering champion on the 40th anniversary of the 1964 Civil Rights Act. Standing in front of a memorial statue of Marshall near the Governor's Mansion in Annapolis , Steele declared: "Without the '64 act, I do not stand in the shadow of this giant." Also in attendance was Arthur Fletcher, one of the original plaintiffs in Brown v. Board of Education. As the NAACP's chief counsel, Marshall had represented Fletcher in that landmark case, which ended legalized segregation in schools. During the ceremony, Fletcher told then-Maryland Gov. Robert Ehrlich, "Thank you for making that young man [Steele] lieutenant governor."

After more than a year of hand-wringing, negotiating, bickering, leaking, and (some) compromise, is financial reform about to crash and burn at the 11th hour? The chances of the Dodd-Frank bill failing to win the necessary 60 votes in the Senate, where the measure must pass before going to President Obama, are increasing by the day. Yesterday, Sen. Russ Feingold (D-Wisc.) reiterated his opposition to the bill, after having voted against it in May, and Sen. Robert Byrd (D-WV), who didn't vote in May but would've backed the bill, passed away yesterday morning. (A position our own Kevin Drum simply can't understand.) Sen. Maria Cantwell (D-Wash.), who joined Feingold in opposing the bill, has yet to change her stance. A spokeswoman for Sen. Charles Grassley (R-Iowa), who voted for the bill in May, told Mother Jones yesterday the senator was still digesting its contents, which means one of four GOP votes is up in the air.

And now, as Talking Points Memo's Brian Beutler reports, another Senate Republican who'd backed the financial bill in May is on the fence:

Sen. Susan Collins (R-ME) joined Sen. Scott Brown (R-MA) this evening, putting herself back into the undecided column on Wall Street reform legislation, after House and Senate negotiators added new fees on banks to the final bill late last week.

"It was not part of either the House or Senate bill and was added in the wee hours of the morning. So I'm taking a look at the specifics of that and other provisions as well," Collins told reporters this evening outside the Senate chamber.

That big bank tax, inserted by Rep. Barney Frank (D-Mass.) on the final night of the House-Senate conference process, is proving to be more of a headache than it's worth. As Beutler mentioned, Scott Brown, who supported financial reform in May, has threatened to join the rest of his party in opposing the bill because of the tax, which Frank added to make banks pay for implementing the Dodd-Frank bill.

This spells trouble for Sen. Chris Dodd (D-Conn.), the Senate's leader on financial reform. His 60-vote supermajority is crumbling, arguably through no fault of his own. It appears likely that the Senate will push back by a week the final vote on Dodd-Frank, so it can secure those 60 votes and avoid a catastrophic loss on the Senate floor.

The Wall Street reform fight, from day one, has been a nervewracking one, with close votes and backroom deals and narrow victories. The final step in the process is shaping up to be no less of a nailbiter.

Elena Kagan is appearing before the Senate judiciary committee for the second day of hearings assessing her suitability for the Supreme Court. I'm covering the action on Twitter. For a primer on what to expect from Kagan's GOP inquisitors, see my preview here.

Last August, the Washington Postreported that the Justice Department had launched an inquiry—later headed by famed leak investigator Patrick Fitzgerald—after Guantanamo defense lawyers allegedly showed pictures of CIA personnel to their clients, a group of high value detainees that included the most notorious terrorism suspects in US custody. Along with their military lawyers, these detainees were represented by civilian defense lawyers affiliated with an ACLU-backed initiative called the John Adams Project. Anthony Romero, the ACLU's executive director, later acknowledged that the ACLU had indeed retained private investigators to identify CIA officers involved with the so-called "enhanced interrogation" of accused terrorists. And he insisted the John Adams lawyers had violated no laws. But the ACLU refused to comment further on its apparent targeting of CIA personnel.

The controversy has simmered on for almost a year, and there remain a number of unknowns in the case. Today, in a piece that appears in July/August issue of Mother Jones, Daniel Schulman and I shed some light on one of them: The identity of the investigator the ACLU tapped to identify and obtain photographs the CIA personnel. You can read the whole piece here.

Could Pennsylvania Senator Arlen Specter, in what’s likely to be one of the last major votes of his 30-year career, cast the decisive vote on Congress’ long-awaited Wall Street reform bill? As Senate Democrats jostle behind the scenes to avert an embarrassing, late-round defeat of their legislation, the stage is set for one last highlight for the outgoing veteran-Republican-turned-Democrat.

Two final votes stand between Congress and passage of the Dodd-Frank bill. On the House side, Rep. Barney Frank (D-Mass.), who deftly ushered the bill through the bipartisan conference process, looks to have the votes needed to pass the 2,000-plus-page reform bill. (The House's version of financial reform passed by 21 votes in December.) The Senate's picture, however, is far less certain.

Right now, Senate Democrats and their staffs are tight-lipped about the pending Dodd-Frank vote as they try to secure the support of at least 60 senators. A vote was slated for this week, but now the Senate is reportedly delaying its vote on the bill by a week or so due to doubts about whether the 60-vote supermajority is in place.

Lacking any controversial court rulings or off-the-cuff remarks to beat up on, Republicans have seized on a rather unusual strategy for attacking Supreme Court nominee Elena Kagan. In what might be called the "guilt by association approach," on the first day of Kagan's confirmation hearings, GOP senators hammered away, not at her record, but at that of legendary Supreme Court Justice Thurgood Marshall. Kagan, who clerked for Marshall, has called him her hero. Why the GOP thinks trying to sully the name of a justice who has become synonymous with the civil rights movement is a good idea is something of a mystery. After all, their party doesn't count a single African-American senator in its ranks. But one by one they plowed ahead, undeterred even by the presence of Marshall's son sitting behind Kagan in a show of support.

Arizona Sen. Jon Kyl seemed to be the designated hitter on Kagan "channeling" Marshall. In his opening statement Kyl said, “Ms. Kagan identified Thurgood Marshall as another of her legal ‘heroes.’ Justice Marshall is a historic figure in many respects, and it is not surprising that, as one of his clerks, she held him in the highest regard. Justice Marshall’s judicial philosophy, however, was not what I would consider mainstream. As he once explained: ‘You do what you think is right and let the law catch up.’ He might be the epitome of a results-oriented judge." Texas Sen. John Cornyn continued the theme, and also wrote an op-ed in USA Today Monday reinforcing the idea. It's clear that the GOP intends to continue with this line of inquiry during the rest of the hearing.

Given the party's already poor showing among minority voters, it's hard to see how the GOP wins many points by bashing Marshall, especially given that there is exactly zero chance that Kagan won't be confirmed. Of course, a cynic might conclude that Republican senators are using the Marshall attacks to appeal to their angry white Tea Party base. And unlike with Sonia Sotomayor, the party isn't so restrained in its white pandering because the nominee isn't a minority herself. Either way, trying to use the Kagan hearings to tarnish the record of someone like Marshall doesn't reflect well on them.

Much of the time, our wars may hardly exist for us, but in the age of celebrity, our generals do—exactly because they become celebrities. When Barack Obama picked Stanley McChrystal as his Afghan war commander, the general was greeted by the media as little short of a savior. He was, we were told, superhumanly fit, utterly austere (eating only one meal a day), and—strangely for the man who was to oversee a protect-the-people counterinsurgency war—had spent his professional life in the deepest shadows of counter-terror warfare at the head of groups of hunter-killer special operations forces. His was the darkest of legacies, but he was greeted like Superman.

Reading the Michael Hastings Rolling Stone piece that unseated him, you can sense in the contempt that McChrystal and his aides (many former special ops officers) express for the Obama administration and its civilian representatives in Afghanistan just what a blunt instrument the man was. No leader or group speaking that way, or that crudely, in private could help but exude similar feelings in public. McChrystal was, in fact, always a divided man, caught between his counter-terror past—he significantly increased special operations units in Afghanistan and sent them out to hunt Taliban mid-level leaders (and in the process kill civilians)—and his newer fealty to counterinsurgency which led him to institute rules of "courageous restraint" that left American ground troops grumbling.

Not content to rest on his laurels, tea partier Rick Barber decided he could make a TV commercial far, far worse than his first "Worst Tea Party Ad of All Time." The long-shot candidate for Alabama's 2nd congressional district is still jammin' with the founding fathers, but this time, there's a twist: Abe Lincoln is there to confirm Barber's hunch that paying taxes is "....Ssssslavery!" Before you get a chance to let that sink in, a montage cues up: MTV-style rough cuts between shots of black slaves, Jewish concentration camp prisoners, and the front gates of Auschwitz—you know, the ones that say, "Arbeit Macht Frei."

This, after a long and winding explication of whiskey regulations with the ghost of George Washington, wherein Barber draws a distinction between the first president's "legitimate" whiskey excise tax and "this tyrannical health care bill." Ur-Washington nods agreement across a table replete with the prop gun, Bible, and Gadsden "Don't Tread on Me" flag. (Takeaway: Taxes are good when they finance military revolutions, but bad when they pay for social ones. FACT CHECK! Can somebody get me the ghost of Daniel Boorstin or Arthur Schlesinger?)

Also, watch the background of the video closely, and you'll also see Dale Peterson, this guy in his cowboy hat, with his lever-action rifle slung on a shoulder. Did you know he lost his primary for Alabama agricultural commissioner? Pity. Hope the gun's not loaded.

At this point, you may well wonder: How come all of that has happened, and there's still two and a half minutes left to the commercial? Because that's almost how long it takes an ostensible Barber supporter in the background to sing every stanza of the national anthem, including those ones you know exist but have lyrics you'll never remember. Lyrics like: "Then conquer we must, when our cause it is just," with superimposed video of Marines shooting and being shot on the Pacific islands in the Second World War. The entire hymn to our flag is sung to a montage of martial imagery: jihadis, tombs of unknowns, Civil War statuary, the Iwo Jima flag.

What can possibly follow this sweet solemnity, on the last 20 seconds of the ad? I'll spot you three guesses, because none of them will be right: Rick Barber belittling the theatrics of Glenn Beck.

One little known facet of this drugster-doctor relationship is Big Pharma's role in continuing medical education (CME) programs, which are important in keeping medical professionals informed and up to date on the fast developing profession. Of the $2 billion or so spent on these programs every year, nearly half comes from the drug business, which not-so-subtly uses the education programs to push new drugs.

Last week, a conference at Georgetown University called "Prescription for Conflict" pulled together experts from academia, government, and industry to discuss the question: Should industry fund continuing medical education? The main instigator here is a former colleague of mine named Adriane Fugh-Berman, a doctor and teacher at Georgetown University Medical School. Fugh-Berman long ago became the nemesis of Big Pharma with a stream of articles and talks questioning the different aspects of liaison between the drugsters and the medical profession. I worked with her helping to set up PharmedOut.org, a website that seeks to educate the public on these liaisons, in part through exposes, both written and on video.

The conference at Georgetown included few critics as candid as Fugh-Berman. Those gathered included polite academics with hedged criticism of industry funding, and regulators like Joshua Sharfstein, principal deputy commissioner at the FDA, and Julie Taitsman, chief medical officer at the Department of Health and Human Services, who presented a list of the different laws protecting the public. By the time they finished, I was so frustrated with government bureaucrats that I was about ready to join the tea party (except that they, of course, would want to do even less to control the greedmeisters at Big Pharma).